Professor of Political Science, California State University, San Bernardino
and Senior Fellow, The Claremont Institute for the Study of
Statesmanship and Political Philosophy

Before the Subcommittee on Immigration and Claims

June 25, 1997

It is my considered opinion that Congress has authority under Section 5 of
the Fourteenth Amendment to define the jurisdiction of the United States.
Indeed, it is my contention that Congress has exercised that power on many
occasions, most recently in the Immigration Reform and Control Act of 1986.

Senator Jacob Howard, the author of the citizenship clause in the Fourteenth
Amendment, defined who would fall within the "jurisdiction of the United
States":

[E]very person born within the limits of the United States, and
subject to their jurisdiction, is by virtue of natural law and national law a
citizen of the United States. This will not, of course, include persons born
in the United States who are foreigners, aliens, who belong to the families of
ambassadors or foreign ministers accredited to the Government of the United
States, but will include every other class of persons. It settles the great
question of citizenship and removes all doubt as to what persons are or are
not citizens of the United States. This has long been a great desideratum in
the jurisprudence and legislation of this country.

Clearly, the
author of the citizenship clause intended to count "foreigners," "aliens," and
those born to "ambassadors or foreign ministers" as outside the "jurisdiction of
the United States." Senator Howard knew, as his reference to natural law
indicates, that the republican basis for citizenship is consent. This is the
natural law principle of the Declaration of Independence that proclaims that
legitimate governments derive "their just powers from the consent of the
governed."

Senator Lyman Trumbull, Chairman of the Judiciary Committee and a powerful
supporter of the Fourteenth Amendment, remarked on May 30th, 1866, that the
jurisdiction clause includes those "Not owing allegiance to anybody else. . . It
is only those persons who come completely within our jurisdiction, who are
subject to our laws, that we think of making citizens; and there can be no
objection to the proposition that such persons should be citizens." This was
familiar language. The Civil Rights Act of 1866 had defined citizens of the
United States as "all persons born in the United States, and not subject to any
foreign power, excluding Indians not taxed." It is universally agreed that the
immediate impulse for the passage of the fourteenth amendment was to
constitutionalize the Civil Rights Act of 1866. This was an attempt to put the
question of citizenship and matters of Federal civil rights beyond the reach of
simple congressional majorities. Thus it is clear that the idea of allegiance
("not subject to any foreign power") was somehow central to understanding the
jurisdiction clause of the fourteenth amendment.

Much of the debate about the jurisdiction clause in the Congress centered on
the status of Indians. The immediate question was whether the fourteenth
amendment would confer citizenship upon the Indians as well as upon the newly
freed slaves. The former slaves, of course, had been born in the United States
and had always been subject to its jurisdiction. Was the same true of Indians?
Indians were surely born in the United States, but were they subject to its
jurisdiction in the sense of "[n]ot owing allegiance to anybody else?" Senator
Trumbull noted that "[t]he provision . . . that all persons born in the United
States, and subject to the jurisdiction thereof, are citizens'. . . means
subject to the complete jurisdiction thereof." Trumbull proceeded to deny that
Indians were "in any sense subject to the complete jurisdiction of the United
Sates . . . We make treaties with them, and therefore they are not subject to
our jurisdiction. . . . It cannot be said of any Indian who owes allegiance,
partial allegiance if you please, to some other Government that he is subject to
the jurisdiction of the United States'."

The author of the citizenship clause, Senator Howard, emphatically agreed
with Trumbull's assessment that Indians would not become citizens of the United
States as a result of the passage of the fourteenth amendment:

the word jurisdiction,' as here employed, ought to be construed so
as to imply a full and complete jurisdiction on the part of the United States,
coextensive in all respects with the constitutional power of the United
States, whether exercised by Congress, by the executive, or by the judicial
department; that is to say, the same jurisdiction in extent and quality as
applies to every citizen of the United States now. Certain, gentlemen cannot
contend that an Indian belonging to a tribe, although born within the limits
of a State, is subject to this full and complete
jurisdiction.

Clearly, insofar as Indians owed tribal allegiance
they were not within the jurisdiction of the United States, even though there
were born within its territorial limits and in many instances subject to its
laws. It is important to note here that jurisdiction does not mean simply
subject to the laws of the United States. Rather, it refers specifically to
political jurisdiction in the sense of allegiance. Aliens in the United States
are properly subject to the laws of the United States and the jurisdiction of
its courts; but this is not the same as owing allegiance to the United States.
Aliens subject to the laws of the United States still owe allegiance to another
country and are thus not within the political jurisdiction of the United States
the only jurisdiction contemplated by the fourteenth amendment.

In 1870, the Senate directed the Judiciary Committee to "report to the Senate
the effect of the fourteenth amendment to the Constitution upon the Indian
tribes of the country; and whether by the provisions thereof the Indians are not
citizens of the United States." The Committee report noted that "[t]he inference
is irresistible that the amendment was intended to recognize the change in the
status of the former slave which had been effected during the war, while it
recognizes no change in the status of the Indians. The report's conclusion was
unequivocal:

those who framed the fourteenth amendment, and the Congress which
proposed it, as well as the legislatures which adopted it, understood that the
Indian tribes were not made citizens, but were excluded by the restricting
phrase, "and subject to the jurisdiction," and that such has been the
universal understanding of all our public men since the amendment became a
part of the Constitution.

Thus it seems to be beyond cavil that
the jurisdiction clause of the fourteenth amendment was intended by its framers
to have independent force; not all persons born in the geographical limits of
the United States are within the jurisdiction of the United States. To be within
the jurisdiction of the United States means to be within its political
jurisdiction. Those who today advocate birth-right citizenship for children of
illegal aliens born within the geographical boundaries of the United States
believe that the fourteenth amendment extends to these children what the framers
of the fourteenth amendment said did not extend to Native Americans.

As the Supreme Court said in Elk v. Wilkins (1884), "[t]he evident
meaning of [the jurisdiction clause] is, not merely subject in some respect or
degree to the to the jurisdiction of the United States, but completely subject
to their political jurisdiction and owing them direct and immediate allegiance .
. . Indians, born within the territorial limits of the United States, members of
and owing immediate allegiance to one of the Indian Tribes, an alien though
dependent power, although in a geographical sense born in the United States, are
no more born in the United States and subject to the jurisdiction thereof,' . .
. than the children of subjects of any foreign government born within the domain
of that government; or the children, born within the United States, of
ambassadors or other public ministers of foreign Nations." In this case, Elk had
renounced his tribal allegiance and had lived for some years apart from the
tribe. But the Court was adamant that the ascription of citizenship could not be
a unilateral or self-selected act. "The alien and dependent condition of the
members of the Indian Tribes could not be put off at their own will, without the
action or assent of the United States" signified either by treaty or
legislation. Neither "the Indian Tribes" nor "individual members of those
Tribes," no more than "other foreigners" can "become citizens of their own
will." It must be emphasized that no individual can be made a citizen against
his will or consent. Yet, self-selected citizenship is not enough; it must be
ratified by those are already members of the political community. As the Court
concluded, the jurisdiction requirement of the fourteenth amendment embodied
"the principle that no one can become a citizen of a nation without its
consent."

The Supreme Court in Elk noted that several congressional acts had been
passed subsequent to the fourteenth amendment to bring various Indian tribes
within the jurisdiction of the United States, acts "which would have been
superfluous if they were or might become, without an action of the government,
citizens of the United States." In this regard, the Court mentions the "Act of
July 15, 1870," extending the jurisdiction of the United States to any member of
the Winnebago tribe who desired to become a citizen. A similar act was passed on
March 3, 1873, extending jurisdiction to members of the Miami tribe of Kansas.
Indeed, this was the method used by Congress exercising its section 5 powers to
enforce the provisions of the fourteenth amendment to bring various members of
Indian tribes within the jurisdiction of the United States. General legislation
was passed in the Indian Citizenship Act of 1924 which provided that "all
non-citizen Indians born within the territorial limits of the United States be,
and they are hereby, declared to be citizens of the United States." Most
recently, the amnesty provision of the Immigration Reform and Control Act of
1986 extended the jurisdiction of the United States to include illegal aliens
residing in the United States for a specified period. Thus, Congress has a long
history of exercising its section 5 powers to define who falls within the
jurisdiction of the United States.

In the case of the children born to aliens illegally in the United States,
their citizenship would follow the citizenship of their parents or be determined
by the laws of the country in which the parents hold citizenship. The fact that
illegal aliens have violated laws of the United States precludes any possibility
that they can be properly said to be within the jurisdiction of the United
States as the aliens surely have demonstrated that they do not believe
themselves to be subject to the laws of the United States, or are only partially
subject. Contrary to a currently fashionable argument, the denial of birth-right
citizenship to children of illegal aliens does not punish the children for the
sins of the parents because the children don't have a right to citizenship in
the first place they are being denied nothing that is rightfully theirs. It
would, of course, be a different matter for the children born of legal aliens
who have been admitted by the laws of the United States. Whether their children
would be citizens at birth or upon the attainment of citizenship by the parents
would be a matter for Congress to determine.

Congress, of course, has plenary power, under terms of Article I, Section 8
of the Constitution, "to establish an uniform Rule of Naturalization." By
necessary inference, Congress has the power to regulate immigration and set the
terms by which those who are legally admitted can remain in the country. It
certainly can establish the standards for which the contract of citizenship can
be offered and the qualifications of those to whom it will be proffered. I
believe that Congress is fully competent, under the fourteenth amendment, to
pass legislation defining those who are "subject to the jurisdiction" of the
United States. It does not require a constitutional amendment to withhold
citizenship from children born in the United States of illegal alien parents.
Their parents are not "subject to the jurisdiction" of the United States and
they seek citizenship for their children without the consent of the nation. It
defies logic to insist that an illegal act on the part of parents can confer the
boon of citizenship upon their children. The nation has specified the terms of
its consent in the uniform rules for naturalization and laws governing
immigration.

The argument for birth-right citizenship is, of course, more suitable to
feudalism than it is to republicanism. Under the feudal concept of citizenship,
anyone born under the protection of the sovereign owed perpetual allegiance or
fealty to the sovereign. It is hardly credible that the framers of the American
Constitution would have contemplated a basis for citizenship that had its
origins in the feudal regime. Indeed, in basing citizenship on the consent of
the governed, the obligations of citizenship were placed on an entirely new and
republican basis. The Reconstruction Congress recognized this point when it
passed the Expatriation Act of 1868. This act a companion piece to the
fourteenth amendment was an explicit rejection of birth-right citizenship as the
ground for American citizenship. It simply declared that "the right of
expatriation is a natural and inherent right of all people, indispensable to the
enjoyment of the rights of life, liberty, and the pursuit of happiness." Thus
the English common law doctrine of birth-right citizenship was decisively
rejected as incompatible with the principles of consent embodied in the
Declaration of Independence. After all, the Declaration of Independence
announced to the world that Americans no longer considered themselves to be
British citizens. If Americans held to the notion of birth-right citizenship,
they would have been incapable of declaring their independence from Britain!

Senator Howard, the author of the fourteenth amendment's citizenship clause,
stated in his support of the Expatriation Act that the principles of the
Declaration of Independence necessarily mean that "the right of expatriation. .
.is inherent and natural in man as man. . ." The notion of birth-right
citizenship was frequently described as an "indefensible feudal doctrine of
indefeasible allegiance." One member of the House of Representative gave
expression to the general sense of the Congress when he concluded that "[i]t is
high time that feudalism were driven from our shores and eliminated from our
law, and now is the time to declare it."

Blackstone had described the allegiance required by the English doctrine of
birth-right citizenship in these terms:

Natural allegiance is such as is due from all men born within the
king's dominions immediately upon their birth. For, immediately upon their
birth, they are under the king's protection . . . . Natural allegiance is
therefore a debt of gratitude; which cannot be forfeited, canceled, or
altered, by any change of time, place, or circumstance . . . For it is a
principle of universal law, that the natural-born subject of one prince cannot
by any act of his own, no, not by swearing allegiance to another, put off or
discharge his natural allegiance to the former: for this natural allegiance
was intrinsic, and primitive, and antecedent to the other; and cannot be
divested without the concurrence act of that prince to whom it was first
due.

The English common law became a part of the American system
only insofar as it was consistent with the principles of republican government.
James Madison wrote that one "fundamental principle of the revolution" was the
assertion of the competence of American legislatures to pass legislation
independently of the common law. In some cases, aspects of the common law were
accepted as a matter of convenience, in others it was rejected outright as
incompatible with the principles of a free and self-governing nation. Surely the
notion of birth-right citizenship, with its requirement of indefeasible
allegiance to a king, was one of those aspects of the common that was rejected
by the principles of the Declaration of Independence.

Among a host of other considerations, birth-right citizenship denies that the
people always retain the natural right to revolution, a right that is the
fundamental right of rights described in the Declaration of Independence. As
Representative Norman B. Judd remarked on the floor of the House in the debate
over the Expatriation Act, "the English common law was not adopted. . . except
so far as applicable to our situation and our form of government. . . . The very
origin and nature of our institutions utterly forbid the idea that the doctrine
of perpetual allegiance' is consistent with our institutions." Representative
Judd further specified the precise sense in which the common law doctrine of
birth-right citizenship was inconsistent with the principles of "our
institutions:" "The right of expatriation is clearly implied as inalienable in
the enumeration of rights in the Declaration of Independence, and its
obstruction was one of the wrongs charged by the colonies against the English
crown." There can be no doubt whatsoever that the fortieth Congress that passed
the Expatriation Act believed that it contained a thoroughgoing repudiation of
the English common law notion of birth-right citizenship and its attendant
requirement of perpetual allegiance. Since this Act was contemporaneous with the
adoption of the fourteenth amendment, there can be little doubt that it also
embraced the principle of citizenship that was embodied in the amendment.
Reciprocal consent is the principle of citizenship embraced in the fourteenth
amendment and the Expatriation Act is a confirmation of that principle.

Chief Justice Fuller remarked in his dissenting opinion in United States
v. Wong Kim Ark (1898), that in the American Revolution "when the
sovereignty of the Crown was thrown off and an independent government
established, every rule of the common law and every statute of England obtaining
in the colonies, in derogation of the principles on which the new government was
founded, was abrogated." It was emphatically the case, Fuller rightly argued,
"that the rule making locality of birth the criterion of citizenship because
creating a permanent tie of allegiance, no more survived the American Revolution
than the same rule survived the French Revolution." Indeed, the consensual basis
of citizenship, so far from creating a permanent and indissoluble allegiance to
the sovereign, maintains "the general right of expatriation, to be exercised in
subordination to the public interests and subject to regulation."

The majority decision in Wong Kim Ark failed to make an adequate case
for American adoption of the English common law basis of citizenship. Wong Kim
Ark's parents were legal residents of the United States but were rendered
ineligible for citizenship by both statutes and treaty; and they still
maintained their allegiance to China. The Court nevertheless held wrongly in my
view that Wong Kim Ark, having been born within the territorial limits of the
United States, had birth-right citizenship. The majority opinion failed to see
that the English common law of birth-right citizenship was not only contrary to
the principles of the founding, but had been explicitly rejected by the
fourteenth amendment and the Expatriation Act. In any case, there has never been
a Supreme Court opinion holding that the children of illegal aliens
are entitled to American citizenship by virtue of their birth within the
geographical limits of the United States. Jurisdiction is not a geographical
concept; it is a matter of political allegiance. Birth-right citizenship has no
place in republican government; it is the relic of monarchy and should be
recognized as such once again by Congress.